Rome Posession

The Acquisition of Possession in Legacies per vindicationem in Classical Roman Law and its Influence in the Modern Civil Codes

Lourd.es Salomon'

Introduction

In Roman law the legatum was a gift that a testator conferred on somebody in his will by charging his heres or heredes In the classical period there were two main types of legatum the legatum per vindicatiQnem (real effect) and the legatum per damnationem (compulsory effect), and two secondary types, the legatum sinendi mode and the legatum per praeceptionem In the classical period, these secondary types were of minor importance and by the second century EC they were almost extinct. Finally in the post-classical period, the classical law of legacies was radically simplified classical formalism was abandoned, and different classical types of legacies were amalgamated

In this paper. I shall discuss what effect Roman law has had on regulating the acquisition of possession in legacies with real effect the precedent of which is the legatum per vindicaticnem in our civil codes.

The legacy per virtdicationem in Roman law gave the legatee ownership of the thing bequeathed, which meant that there was no need for an act of transfer The legatee could claim the thing from the hen-, or any other possessor with the ret bindicatio. The testator who wished to create such a legatum had to observe certain forms, the most usual of which was do lego. Other forms, however were permissible for example sumita, capita, and rem sibi habeto, but none of them required the heir to effect an act of transfer The law of legacies was studied with LLunconcealed predilection'1 by classical lawyers, but those who wrote lengthy treatises neglected the question of the legatee who acquires possession in legacies with real effect. In previous studies on this subject,- I have shown that the proper and usual way to acquire possession in this kind of legacy was unilateral apprehension by the legatee. The verbs sumo, capita and sibi habeo clearly...